As
vividly demonstrated by recent posts on Balkinization, one set of scholars
think about Ferguson, Missouri and related problems and a completely different
set of scholars think about constitutional theory. Contemporary constitutional theory is about
whether same-sex couples have a right to marry, not about the practice of
policing in communities such as Ferguson, Missouri. How constitutional theory lost touch with
central problems of American governance is worthy of some thought.

The
contemporary constitutionalism canon in the United States has three
prongs. The first are those constitutional
decisions (Brown), texts (the
Declaration of Independence), events (the decision to fight the Civil War) and
persons (Abraham Lincoln) everyone agrees represent American constitutionalism
at its finest. The second prong,
sometimes called the anti-canon, are those constitutional decisions (Dred Scott), texts (the Confederate
Constitution), events (the internment of the Japanese) and persons (James
Buchanan) everyone agrees represent American constitutionalism at its
worse. The third prong consists of those
constitutional decisions (Roe), texts
(the Contract with America), events (the recent exercises of presidential
power) and persons Barack Obama) that must be justified or condemned in light
of the canon and anti-canon. A good deal
of constitutional theory consists of arguments that your particular cause
(same-sex marriage, the unitary president) is supported by the good canon,
while rival positions are analogous to the bad anti-canon. What is interesting for present purposes is
that constitutional canons and anti-canons tend to get trotted out only during
some debates. Brown, Lochner and
related canons make frequent appearances when same-sex marriage is on the
table. Debates over standing or the
dormant commerce clause tend to be over the best interpretation of precedents
known only to persons who spend a good deal of time studying standing or the
dormant commerce clause. Ferguson, in
this respect, seems more analogous to standing than same-sex marriage. Constitutional theorists no doubt admit the issues of policing are serious, but they are peripheral to the broader theoretical task of elaborating the central regime principles of the American constitutional order.

The exclusion
of the problems presented by Ferguson, Missouri from the constitutional canon
and contemporary constitutional theory may be partly a consequence of the
dominant tendency to reduce constitutional theory to constitutional
interpretation. Constitutional theory is
presently almost exclusively devoted to such questions as “what is the proper
interpretation of the equal protection clause of the Fourteenth Amendment” and “whose
interpretation is authoritative.” Sandy
Levinson aside, very few people who label themselves constitutional theorists
are concerned with the problem that occupied Madison, namely how power could best
be organized to ensure that Americans are treated equally and justly. Constitutional
theory as interpretation places Obergefell
v. Hodges at the center of the constitutional enterprise. The
crucial issue in the debate over that decision is whether the Fourteenth
Amendment protects the right of same-sex couples to marry. Ferguson is largely peripheral to that debate
because no serious dispute exists over the proposition that police should not
shoot a disproportionate number of black men.
Ferguson is about constitutional theory as institutional design, about how
government institutions can be structured in ways that minimize police violence
and guarantee to the extent humanly feasible that the victims of police
violence will be randomly selected. Interpretation has little or nothing to say about these issues.

The marginality
of Ferguson in the contemporary constitutional canon may also be partly a
consequence of the tendency for constitutional theory to focus on issues of
stigmatic harm to the upper-middle class rather than on the material deprivations
suffered by much less fortunate Americans.
Put overly broadly, contemporary constitutional theory focuses on
questions of personal concern to lawyers and law faculty. “The voices from the margins” are people who
regard themselves as outsiders on law faculties and the legal profession,
rather than people who cannot even dream of becoming lawyers or law
professors. Consider in this respect the
different degrees of attention constitutional theorists pay to constitutional questions about whether states
may fund or restrict abortion, which raise the possibility of stigmatic harm for anyone
who chooses an abortion, and whether states must guarantee adequate nutrition
to newborns, which is of little personal concern to any person who can afford to
feed their children. All of us know
people who personally celebrated Obergefell. Few constitutional theorists have close
friends who are regularly subjected to police brutality.

Perhaps
constitutional theory is partly returning to its late eighteenth century roots. A good deal of scholarship suggests that the
main impetus for the Constitution of 1789 was a sense among elites that they
were losing in state politics.
Nationalizing politics would greatly improve the chance that rights
elites believed were fundamental (contracts) would be protected while throwing
obstacles in the paths of rights (binding instructions) less affluent Americans wanted
protected. The Constitution of 1868 had
a different premise. The persons
responsible for the Fourteenth Amendment were far more concerned with
constructing a constitutional politics that would protect persons of color than
with determining the best interpretation of equal protection of the law, a matter
on which they disagreed. If the citizens
of Ferguson, Missouri are to be restored to their central place in American
constitutionalism, we need to think more about the constitutional questions concerning
how a constitutional order can be constructed that treats all persons with equal
concern and respect and less about the interpretive questions historically at
the margins of the constitutional enterprise.